Isle of Palms Resort [2009] QBCCMCmr 67 (26 February 2009)

Last Updated: 9 March 2009

REFERENCE: 0067-2009

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	20860
Name of Scheme:	Isle of Palms Resort
Address of Scheme:	2-10 Coolgardie Street ELANORA QLD 4221

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Joye Godden, the owner of Lot 109

I hereby order that the application for an interim order by Joye Godden, the owner of Lot 109 against the body corporate for Isle of Palms Resort community titles scheme 20860 that the committee be restrained from engaging the services of Strata Sphere Management Pty Ltd to undertake duties of the body corporate manager, at additional expense to the body corporate, when the elected body corporate manager, Queensland Strata Administration, is being paid within their contract to perform the same duties, namely preparation and attendance at the committee budget meeting and the Annual General Meeting dated 29 January 2009, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0067-2009

“Isle of Palms Resort” CTS 20860

The scheme
“Isle of Palms Resort” community titles scheme 20860 is subject to the Body Corporate and Community Management Act 1997 (Act) and the Body Corporate and Community Management (Accommodation Module) Regulation 2008 (Accommodation Module).

Application
This application made on 28 January 2009 (amended 12 February 2009) is by Joye Godden, the owner of Lot 109 (Applicant) against the Body Corporate seeking the following outcomes:

1. That Queensland Strata Administration (QSA) continues in its role as Body Corporate Manager, as contracted to do so, until the annual general meeting in February 2010.
2. An order that Motion 2 of the Extraordinary General Meeting held 5 November 2008 (November EGM) be declared invalid because the motion contains two separate subject matters.
3. An order that Motion 3 of the November EGM be declared invalid because the motion contains two separate subject matters.
4. Order that the committee produce the resolution passed to engage Strata Sphere Management (SSM) as an independent Body Corporate Manager to conduct the November EGM, including the quotation.
5. An order that John MacDonald, appointed returning officer for the November EGM, allow access to the material related to the November EGM to members of the Body Corporate as requested including but not limited to:
   • (i) nominations for election as committee members;
   • (ii) proxy appointment documents;
   • (iii) completed voting papers for motions and election ballots;
   • (iv) voting tally sheets or other records showing votes for motions and election ballots;
   • (v) copies of corporate nominee forms and power of attorneys.
6. An order that Motion 8 of the Annual General Meeting to be held on 29 January 2009 (2009 AGM) be declared invalid because the quotation from SSM for engagement as body corporate manager is above the relevant limit for major spending for the scheme as defined in schedule dictionary section 4 of the Accommodation Module, and the motion should have been included in the agenda as a motion with alternatives including at least two quotations.
   

The Applicant has sought an interim order that the committee be restrained from engaging the services of SSM to undertake duties of the body corporate manager, at additional expense to the body corporate, when the elected body corporate manager, QSA, is being paid within their contract to perform the same duties, namely preparation and attendance at the committee budget meeting and the 2009 AGM.

The Applicant provides a background from the Annual General Meeting dated 16 February 2007 saying that as a consequence of a determination made under the dispute resolution provisions of the Act [Isle of Palms Resort [2008] QBCCMCmr 264 (5 August 2008)], the committee engaged the services of SSM to conduct the ordered meeting — the November EGM. The Applicant states the cost of engaging SSM for conducting this meeting is in excess of $12,507.39, which is above the relevant limit for major spending stated in the Accommodation Module.

The Applicant submits that SSM has been engaged to handle the committee budget meeting and to do body corporate management work for the 2009 AGM when QSA are being paid under a body corporate management contract. The Applicant states both meetings were included in the contract with QSA. The Applicant submits the Body Corporate has two body corporate managers engaged and that, on 2 December 2008, the committee informed QSA that it had employed SSM to handle the budget meeting and the 2009 AGM.

Jurisdiction
In accordance with section 247 of the Act, the Commissioner for Body Corporate and Community Management has referred the application to me even though affected persons have not been given notice of the application or afforded an opportunity to make submissions about the application.

Section 276(1) of the Act provides that an adjudicator may make an order that is just and equitable in the circumstances to resolve a dispute, in the context of a community titles scheme, about a claimed or anticipated contravention of the Act; or the exercise of rights or powers, or the performance of duties, under the Act. Section 279(1) provides that an adjudicator may make an interim order “if satisfied, on reasonable grounds, that an interim order is necessary because of the nature or urgency of the circumstances to which the application relates”.

Investigation
In accordance with the investigative powers of an adjudicator stated in section 271 of the Act, on 16 February 2009, I invited submissions from the committee regarding the interim order application and a copy of the application was provided to QSA (Body Corporate Manager) for distribution to committee members.

On 18 February 2009, Mr Gale (secretary) indicated that QSA had sold its business to Platinum Body Corporate Administration and that he will endeavour to make submissions by the closing date. On 19 February 2009, Tony McQuillan of Platinum Body Corporate Administration Pty Ltd informed the Commissioner that the QSA business had been purchased.

McDonald Balanda & Associates Lawyers made submissions on behalf of the committee stating that QSA is not appointed as the body corporate manager and does not hold any authority to act on any capacity on behalf of the body corporate. The committee submit that as the Body Corporate voted not to renew the appointment of QSA at the November EGM, QSA’s appointment could not have continued after the 2009 AGM. The committee submit it was difficult to make detailed submissions as the grounds have not been particularised as to identify those in support of the interim order. The committee states the interim order relates to matters which have now passed as the committee budget meeting and the 2009 AGM have been held.

Determination
Given section 279(1) of the Act, it is necessary to determine at the outset whether, because of the nature or urgency of the circumstances relating to the application, an interim order is in fact necessary or appropriate. The examples included in the Act under section 279(1) are suggestive of the usual circumstances where an interim order might be made. Both examples are in the nature of injunctive relief. Whilst the range of matters which might be the subject of an interim order is not capable of definition, the Applicant does need to establish that the circumstances of the application warrant the making of an interim order.

The Applicant seeks an interim order that the committee be restrained from engaging the services of SSM and refers to particular duties carried out relating to a committee budget meeting and the 2009 AGM. The Applicant has not provided any material to suggest the committee budget meeting has not been held (a meeting of this type is normally held before an annual general meeting). As acknowledged by the Applicant, the 2009 AGM was set down to be held the day after this application was made. The committee has submitted that both meetings have been held. The Applicant has not provided any material to suggest this is not the case.

It would seem that a basis for the interim order is the claim that QSA is the body corporate manager for the scheme (I note that the business has been sold). The continuing engagement of QSA is disputed by the committee. While a final outcome may relate to this issue, for the purposes of determining the interim order application the Applicant does need to demonstrate urgent circumstances exist. I am not satisfied from the interim order sought and the grounds provided that such circumstances exist with respect to this issue.

Even though the Applicant expresses concern about claimed payments to SSM, the Applicant has not demonstrated that a Body Corporate decision has been made relating to an ongoing relationship with SSM which suggests urgent circumstances exist to warrant consideration, on an interim basis, as to whether that decision is contrary to the legislation.

In these circumstances, I am not satisfied urgent circumstances exist to warrant making an interim order in the terms sought. For these reasons, the application for an interim order is dismissed.

The committee made submissions questioning the application on the basis it was made by a person appointed as the power of attorney of a lot owner. The Applicant is Joye Godden, the owner of a lot included in the scheme care of the appointed power of attorney. A dispute resolution application may be between a lot owner and the body corporate (s 227(1), Act).

This application will now be administered in accordance with the Act and the normal processes of this Office. The application will be finally determined in due course.